We’ve Only Just Begun to Resist Indefinite Detention

In a recent column, Chris Hedges argued that his appeal to the Supreme Court will be “the last chance” to stop indefinite detention under the National Defense Authorization Act.

Sadly, history indicates his last stand will likely fail.

Hedges and his fellow plaintiffs put their faith in a branch of the federal government to limit the powers of the federal government.

This almost never happens.

Surprisingly, Hedges won a victory in round one against federal kidnapping when district Judge Katherine Forrest granted a permanent injunction on enforcement of section 1021(b)(2) of the NDAA. The judge ruled that overbroad language allowed for detention of those engaging in constitutionally protected free speech. She also said detention provisions deny prospective detainees basic due process rights.

But the Obama administration rushed to protect its detention powers and appealed the ruling. An appeals court restored the government’s alleged power to kidnap and detain people until the end of an endless war, setting up the final battle at the Supreme Court.

Hedges points out that the Supreme Court may not even hear the case. The Court gets some 8,000 case requests each year. Out of those, it only hears between 80 and 100. But even if the Court takes the case, it still remains unlikely it will smack down federal detention powers.

Between the founding and 2002, the Court ruled only 158 federal acts unconstitutional in whole or in part. Considering the amount of legislation passed by Congress through the history of the Republic, that doesn’t offer Hedges much hope.

Simply put, we cannot count on federal employees to protect us from overreaching federal power. It’s a little like letting a Dallas Cowboys’ player referee a football game between the Cowboys and the New York Giants.

But Hedges need not despair. The Supreme Court does not represent the last chance to stop federal kidnapping. In fact, the battle against indefinite detention has only just begun.

James Madison gave us the blueprint for stopping unconstitutional exercises of federal power in Federalist 46. Madison said, “the means of opposition to it are powerful and at hand.” He went on to point out that “the disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments.” And when a number of states resist federal the “unwarrantable measures,” Madison said it “would present obstructions which the federal government would hardly be willing to encounter.”

State resistance to NDAA detention started last year when Virginia Gov. Bob McDonnell signed a bill into law prohibiting state cooperation with federal attempts at indefinite detention in Virginia. Last spring, Alaska followed suit, passing its version of the Liberty Protection Act. And earlier this month, the California Senate unanimously approved a bill that would make it state policy to refuse cooperation with federal attempts at indefinite detention under the NDAA or “any federal law that purports to authorize” the same. If Gov. Jerry Brown signs AB351, it will become the law of the land in California.

Add to that more than a dozen local governments that have passed resolutions condemning federal kidnapping, and you have the beginnings of a massive movement to resist indefinite detention.

The federal government depends on state and local authorities to enforce its “laws.” When they refuse to cooperate, it can render an act unenforceable. Northern states proved this prior to the Civil War when they effectively nullified the Fugitive Slave Act of 1850 through personal liberty laws.

Officials in these states did everything within their power to thwart enforcement, including denying federal agents the use of jails, and even impeaching state officials who lent support to fugitive-slave claimants. Their actions were so effective that several southern states cited nullification of the Fugitive Slave Act in their declaration of causes for secession.

A similar strategy can and will thwart indefinite detention today.

A favorable Supreme Court ruling would certainly represent a tremendous victory. But even if the judges fail us, we still have a means of opposition, powerful and at hand.

The Supreme Court our last chance? Not a chance! We’ve only just begun the fight.